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EXHIBIT 10.28
LICENSE AGREEMENT
This
LICENSE AGREEMENT (this "Agreement") is made and entered into as
of
February 10, 2003 by and between
Weatherbeeta PTY LTD ("Licensor"), an
Australian corporation and Dover Saddlery,
Inc. ("Licensee"), a Delaware
corporation.
RECITALS
I. As
described in a letter agreement dated February__, 2003, between
Licensee and Licensor (the "Letter
Agreement"), Licensor has acquired certain
rights to the Marks and the goodwill
appurtenant thereto pursuant to a secured
party sale by The Bank of New York to
Licensor's nominee Weatherbeeta USA, Inc.,
which has assigned all of said rights to
Licensor.
II.
Licensee desires to license from Licensor certain of those
rights.
NOW
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged
by Licensor the parties agree that:
1. As used
in this Agreement the following terms shall have the following
meanings:
"Domain Name" means the URL address and domain name
www.millerharness.com.
"Marks" means the trademarks and tradenames "Millers" and
"Miller's
Harness", whether registered or common law
marks, and including, but not limited
to those trademarks registered with the
U.S. Patent and Trademark Office as
Registration Nos. 1087381,1608811, and
0885095; that Trademark registered with
the Canada Intellectual Property Office as
Registration No. 240890; that
Trademark registered with the Mexican
Industrial Property Office as Registration
No. 504551; those trademarks registered
with the Brazil Instituto Nacional Da
Propriedade Industrial as Registration Nos.
816641200, 816641196 and pending
applications with Processing Numbers
817201564 and 817201572; and the mark
attached hereto as Exhibit A.
"Territory" means North America, Central America and South
America.
2.
Licensor hereby grants to Licensee, and Licensee hereby accepts
from
Licensor, a perpetual, exclusive right,
license and privilege (subject only to
the Debtor's License, described below), in
accordance with the terms and
conditions of this Agreement, to utilize
the Marks in the Territory in
connection with: (i) a retail mail order
sales catalog distributed within the
Territory for retail sales of equestrian
products and apparel; and (ii) an
Internet web site that uses the Domain Name
for retail sales of equestrian
products and apparel ((i) and (ii)
hereafter collectively referred to as the
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"Field"). Licensee shall have no right to
use the Marks or the Domain Name for
any other purpose outside of the Field.
Specifically, but not by way of
limitation, Licensee shall have no right to
make, have made, or import products
bearing the Marks or the Domain Name, and
may only sell and offer to sell such
products purchased from authorized
licensees of Licensor. Licensee acknowledges
that its license granted herein overlaps
with the non-exclusive license (the
"Debtor's License", attached hereto)
granted to English Equestrian Group LLC and
Miller Harness Company, Inc. (the
"Debtors") and to The Bank of New York to
utilize certain rights, including the Marks
and the Domain Name, in the
Territory until April 30, 2003, solely in
connection with the distribution,
marketing and/or sale of certain inventory
currently owned by the Debtors.
Licensor agrees that it will not 1) extend
or otherwise amend the Debtor's
License and 2) grant any other licenses
permitting any third party to use the
Marks or the Domain Name in the Field and
within the Territory.
3.
Licensee accepts its rights hereunder "AS IS", without any
representation or warranty whatsoever,
express or implied. Licensor expressly
disclaims any and all warranties with
respect to the Marks and the Domain Name
and the rights therein, including, but not
limited to, any warranty that
Licensor has good title to the Marks or
valid registration of the Domain Name,
that the Licensor has the power or
authority to grant the rights purportedly
granted herein, that the Marks or Domain
Name do not infringe upon the rights of
any third party, or that no third party has
rights superior to those granted
herein. Licensee acknowledges that it has
had the opportunity to conduct due
diligence with respect to Licensor's
acquisition of the Marks and the Domain
Name and the rights that Licensor has
acquired in such Marks and the Domain
Name.
4.
Licensor agrees that during the term of this Agreement, no fee,
royalty
or other payment or compensation shall be
due to Licensor for the license
granted pursuant to this Agreement.
Licensee agrees that the nature and quality
of all services rendered by Licensee in
connection with the Marks, and all
related advertising, promotional and other
uses of the Marks by Licensee shall
conform to standards set by and under the
control of Licensor.
5.
Licensee agrees to cooperate with Licensor in facilitating
Licensor's
control of the nature and quality of the
services rendered by Licensee in
connection with the Marks, to permit
reasonable inspection of Licensee's
operations, and to supply Licensor with
specimens of all uses of the Marks upon
reasonable request accompanied by advance
notice of at least fifteen (15)
business days. Licensee shall comply with
all applicable laws, regulations, and
obligations, and shall obtain all
appropriate government approvals pertaining to
the uses of the Marks and the Domain Name
covered by this Agreement.
6.
Licensee agrees to notify Licensor of any unauthorized use of the
Marks
by others promptly as it comes to
Licensee's attention. Licensor hereby grants
to Licensee the right to bring infringement
or unfair competition proceedings
against third
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parties for unauthorized usage of the Marks
or the Domain Name in the Territory
and within the Field. Licensor agrees to
reasonably cooperate with Licensee in
connection with all such proceedings, at
Licensee's expense. Licensor shall have
the right, in its discretion and at its
sole expense, to join and participate in
all such proceedings initiated by Licensee.
Any recovery as a result of such
action by Licensee shall belong solely to
Licensee, except to the extent that
such recovery represents damage to
Licensor, in which case any such recovery
shall be paid to Licensor. In the event
Licensee s
